Saturday, December 20, 2003

False Claims Act, unfiled tax returns, FCRA, gun shots and dischargeability, domain name deals

In Friday's opinions from the Fourth Circuit:

In U.S. ex rel. Harrison v. Westinghouse Savannah River Co., the Fourth Circuit in an opinion by Judge Shedd joined by Judge Williams and Senior Judge Hamilton affirmed a jury award in a qui tam action against a government contractor under the False Claims Act. The Court rejected arguments that the company's false representation to the government was not material, and that it lacked the requisite intent, and that plaintiff's fraud evidence went beyond the pleadings. The Court also rejected the plaintiff's issues regarding the limits of what he was awarded in damages, expenses, and attorneys' fees.

In Moroney v. IRS, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judge Traxler and District Court Judge Payne, held that the belated and half-hearted efforts of a bankruptcy debtor to file income tax returns were insufficient to allow for a discharge of tax debts.

In Ausherman v. Bank of America Corp., the Fourth Circuit in an opinion by Judge Motz, joined by Judge Traxler and Judge King, held that the defendant have acted negligently or deliberately to violate the Fair Credit Reporting Act. The defendant had no good reason for accessing the plaintiffs' credit reports, but presented evidence that it didn't mean to do it, basically that there was some computer or data entry error between the defendant and the credit reporting agency.

In Parsons v. Parks, the Fourth Circuit in a per curiam opinion for the panel of Judges Williams and Shedd and Senior Judge Hamilton reversed the ruling of Judge Williams of the W.D. Va. and sided instead with the ruling of the bankruptcy court that a judgment against the debtor for shooting a guy three times was not dischargeable in his bankruptcy case. I was about to say that I don't recall other cases where Judge Karen Williams of the Fourth Circuit voted to reverse Judge Glen Williams of the W.D. Va., but come to think of it, I was among a legion of lawyers in one such case, almost 10 years ago.

In Network Solutions, Inc. v. Hoblad, B.V., the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins and Judges Duncan and Traxler affirmed the trial court's decision in a case about an alleged breach of contract relating to the sale of second-level domain names. The opinion explains that "SLDNs are the names immediately to the left of 'top-level domain' designations such as '.com' and '.org'—for example, the name 'google' in ''" The Court found that the defendants had contractually agreed to jurisdiction in the Rocket Docket of the E.D. Va., and that they had breached their contracts by failing to pay for some 4,000+ SLDNs.

Summary judgment affirmed in unregistered securities case

In Partington v. Pennington, the Fourth Circuit in an opinion by Judge Luttig, joined by Judge Shedd and Senior Judge Michael of the W.D. Va., affirmed the rulings by Judge Turk in a complex case brought by a group of clergy, lay persons, and churches, claiming they were ripped off in the investments made on their behalf. Judge Turk ruled, among other things, that the lead plaintiff was without standing to raise some of its claims under the federal securities laws.

The Court described the allegations about what happened to the money:

"Partington claims that, in 1999, one R. Ray Levy approached Charterhouse and induced it to purchase viatical insurance contracts as investments for the trusts Charterhouse administered, promising above-market returns. Clients of Charterhouse apparently invested more than one million dollars in these viatical contracts; it invested more than $34,000 in funds from the Partington trust. The viatical contracts were purchased from Financial Federated Title & Trust ("FinFed") using a broker controlled by Levy. In late 1999, Partington received notice that the entire investment from his trust in the viatical
contracts was lost. All in all, of the 115 million dollars nationwide that was given to FinFed for the purpose of purchasing viaticals, only about six million dollars was actually so used.

Allegedly, Levy also persuaded Charterhouse to advise its clients to purchase senior notes from defendant U.S. Capital Funding, Inc. ("U.S. Capital"), a company Levy controlled, which notes purported to fund U.S. Capital’s loans to well-known companies. Partington claims that Charterhouse used over $52,000 in funds from the Partington trust to purchase such a note from U.S. Capital, and that Charterhouse defendants persuaded numerous other ministers to invest in these notes. He asserts that members of his proposed class purchased over seven million dollars of these notes. U.S. Capital is now in bankruptcy, and has refused Partington’s requests for payment on the note. Partington claims the investments made for the benefit of the Partington Trust all were made after consultation with and direction from him, without any input from his church."

Fourth Circuit rules for CLEC in contest over interconnection agreement

The Telecommunications Act of 1996 allows competitive local exchange carriers access to the assets of the incumbent local exchange carriers, to provide local telephone service. The Act provides for state utility commissions to arbitrate the interconnection agreements between the CLECs and ILECs. In MCImetro Access Transmission Services, Inc. v. BellSouth Telecommunications, Inc., the Fourth Circuit in an opinion by Judge Williams, joined by Judge Luttig and Judge King, reversed the trial court's judgment and held in favor of the plaintiff CLEC that the arbitration award by the North Carolina utilities commission violated the Act as construed by the FCC on a number of issues and remanded the case for reconsideration of another in light of a recent FCC ruling.

One interesting aspect to the whole scheme is that the state utility commissions decide these interconnection disputes, but their views are entitled to no deference, instead the Court's task was to measure the North Carolina decision against the rulings of the FCC.

Gilmore and Church trial stays in Abingdon, for now

In the latest U.S. v. Gilmore opinion, Judge Jones again refused to a transfer of venue motion, concluding that he can decide during voir dire whether it is possible to seat a jury not tainted by the years of publicity about the Pocahontas murder cases.

Student loan discharge in old bankruptcy case voided

In Educational Credit Management Corporation v. Doane, Chief Judge Wilson of the W.D. Va. ruled that the debtor's bankruptcy discharge was void at least to the extent it purported to discharge her student loan debt, and the creditor could obtain relief from the judgment under Rule 60(b)(4), despite the passage of years since the bankruptcy court's judgment.

Judge Wilson's opinion in the case of the nurse claiming wrongful discharge

In Swain v. Adventa Hospice, Inc., Chief Judge Samuel Wilson of the W.D. Va. granted the defendant employer's motion to dismiss the plaintiff's wrongful discharge claim. The plaintiff claimed that she was discharged because after she corrected the medication for a patient, saving the patient's life, the employer was embarrassed and fired her.

Judge Wilson explained that there are only three scenarios in which wrongful discharge claims are allowed in Virginia: (1) when an employer violated a policy enabling the exercise of an employee’s statutorily created right; (2) when the public policy violated by the employer was explicitly expressed in the statute and the employee was clearly a
member of that class of persons directly entitled to the protection enunciated by the public policy; and, (3) when the discharge was based on the employee’s refusal to engage in a criminal act.

Judge Wilson made three points about the plaintiff's claim: (1) "without a refusal to perform a unlawful act element, very little would focus the factual inquiry, and the employment at-will doctrine would lose considerable vitality, (2) "where the unlawful act alleged is a failure to conform to a standard of care or reach an appropriate professional judgment, there is no bright line to guide and limit the employer – a hallmark of the public policy exception," and (3) "when the challenged decision falls within the professional’s or expert’s domain, not only do bright lines informing the employer’s decision disappear, but employment litigation also digresses."

Thursday, December 18, 2003

Supreme Court refuses to vacate stay in Virginia death penalty case

According to this AP report, the Supreme Court declined earlier this evening to vacate the stay ordered by the Fourth Circuit of the execution of a Virginia inmate, scheduled for tonight.

Adelphia bankruptcy explained to Lee County supervisors

Regarding the renewal of the cable franchise in Lee County, a spokesman for the company explained why promised extensions of service in the County have not been made, as reported in the article ("Lee grants franchise extension to Adelphia Communications," 12/17/2003) from the Kingsport paper (registration required).

The Adelphia spokesman "said the promise was made before bankruptcy was filed, and part of the reason the extension had not been made is because of the bankruptcy - which was brought on by the company expanding to areas that were not adequately populated to provide enough return on the investment."

Virginia mediation news

This newsletter on mediation in Virginia state courts has several worthwhile articles, including more information about how a number of retired judges have been trained for settlement conferences under Rule 1:19. It also describes a program in Chesterfield County, where all litigators have sign a sort of mediation awareness certificate.

A glossary of legal terms

When I was a young man, every month I took the multiple choice vocabulary quiz in my mom's Reader's Digest, in the section called, "It Pays to Increase Your Word Power" (or something like that).

Now, for whatever reason, the Virginia judiciary website has posted this glossary of terms used in court.

It includes some but not all of the words that sound strange to some out-of-state lawyers - motion for judgment, grounds of defense, demurrer, special plea in bar, motion to crave oyer. The first time I saw a motion craving oyer, I burst out laughing, thinking what are they doing to me now? I had carefully alleged a breach of contract without including any mention of the bad contract terms, and here was this motion blowing the whistle on me for doing just that! What a great concept, I thought, I need to file some of these myself, and so I have.

Litigating the triangle

In Northland Ins. Co. v. Berkebile Oil Co., Judge Michael dealt with the case of a insurer seeking a declaration that a third party was not covered by the contract of its insured, which was not joined as a party to the case. The Court surmised: "One can visualize the relationship between the three parties as a right triangle, with the insurance agreement between Northland and Hydrosol forming the upright segment and the indemnity agreement between Hydrosol and Berkebile forming the lateral segment. Northland’s argument is that the sole issue in this case involves the hypotenuse." The Court concluded that the insured was an indispensable party, and granted the motion to dismiss.

Fourth Circuit reinstates death penalty for South Carolina inmate

In Wilson v. Ozmint, the Fourth Circuit in an opinion by Judge Luttig, joined by Judge Widener and Chief Judge Wilkins, overturned the ruling of the district court on the post-conviction relief sought by a South Carolina inmate, reinstating his death sentence. The AP has this report on the case.

Environmentalists say Fourth Circuit nominee Haynes is not for the birds

How Appealing has this post with a link to this site, with a story titled "Bush Judicial Nominee: Bombing Birds Benefits Birdwatchers."

The story begins: "For all the attention on the president's judicial nominees, one of his most recent candidates has remained under the radar screen -- despite a legal record that includes arguing on behalf of the Bush Administration that bombing birds is good for birdwatching."

More on punishing adultery in Virginia

This Findlaw article ("Punishing Adultery in Virginia - A Cheating Husband's Guilty Plea Is A Reminder Of the Continued Relevance of Adultery Statutes," Joanna Grossman, 12/16/2003) discusses the recent case involving the lawyer in Luray, Virginia who entered a plea of guilty to charges of adultery brought by his paramour.

Fifth Circuit says malicious prosecution does not equal a constitutional claim

Via, this story describes the Fifth Circuit's opinion in Castellano v. Fragozzo, which says a claim against state actors for malicious prosecution without more (such as some kind of pre-trial "seizure," within the meaning of the Fourth Amendment) does not establish a constitutional claim. The opinion cites, among others, the Fourth Circuit's decision in Lambert v. Williams, 223 F.3d 257 (4th Cir. 2000).

This area of the law is very interesting, because it is so confusing, starting with the Supreme Court's opinion in the Albright v. Oliver case. I've tried to jump on the bandwagon a time or two but I haven't really had the facts to support it - the idea that there was no constitutional claim because plaintiff has nothing but a malicious prosecution claim. Maybe next time.

New federal rules in lieu of train whistles

The trains don't stop in Abingdon, but they do whistle, or they did.

This AP article describes new rules from the Federal Railroad Administration, which purport to preempt local laws to require extra safety measures at crossing, in plains where trains can't whistle.

FERC denies Virginia's request for delay in AEP case

Reuters reports here that the Federal Energy Regulatory Commission ("FERC") has denied Virginia's request to delay implementation of the ruling that allows American Electric Power ("AEP") to join the PJM multi-state electricity transmission group.

At the same time, one member of the House of Delegates declared that even further delay in allowing Virginia utilities to join regional transmission groups would be necessary to protect Virginia consumers, according to this article in the Richmond paper.

This case seems to be heading for a showdown on the respective powers of state and federal governments over interstate electricity transmission.

Fourth Circuit grants stay of execution in Montgomery County case

The Richmond paper reports here ("Court puts hold on man's execution - Defense says lead trial attorney did not handle the case properly," 12/18/03) and the Roanoke paper reports here ("Appeals court grants stay of execution for murderer," 12/18/03) that the Fourth Circuit has granted a stay in the case of the man scheduled to be put to death on Thursday for murdering an octogenarian woman in Montgomery County.

Wednesday, December 17, 2003

Here's Waldo

Some fellow in Blacksburg, having emigrated from Charlottesville, has added me to his blogroll - and he has this commentary on the upcoming session of the General Assembly, including the text of his letter to Del. McDonnell.

Unrelated to this, some time ago I discovered that Virginia Tech has had a president named Minor and another named Conrad. It says here that Minor was ousted for a fist fight with a professor, while Conrad was a spy for the Confederacy, and at one time was suspected to be a co-conspirator to the Lincoln assassination. I can understand how it is that none of my Minor or Conrad relatives brought this history to my attention, and that there is no Minor Hall in Blacksburg (though there is this one in Charlottesville).

Error on the law school-Red Wings connection

I'm told that the founder of the Ave Maria law school, Tom Monaghan, "never owned the Detroit Red Wings. He did own the Detroit Tigers."

I stand corrected, and ought to know better.

More on marijuana and interstate commerce

In Raich v. Ashcroft, the Ninth Circuit bought the argument that the federal marijuana laws are not within the authority of Congress to regulate interstate commerce - as applied to medical marijuana, rather than I guess just plain party marijuana. The decision notes that in 5 prior decisions, the Ninth Circuit had rejected Commerce Clause challenges to the Controlled Substances Act, but somehow felt they were distinguishable.

This is a bogus distinction that I doubt will pass muster if and when the Supreme Court is heard on this issue.

Roanoke TV station wins defamation case on motion to strike

The Roanoke Times reports here ("Judge strikes libel suit brought by Holdren's against WDBJ-TV," 12/17/03) on a circuit court's decision to strike the evidence in a defamation case against a Roanoke television station brought by a local business.

Apparently, the suit was originally filed in 1997 - so it took 6 years to get to trial?

Tuesday, December 16, 2003

First, the car tax; now, homeland security

According to this press release, the Gilmore Commission report on Homeland Security is now available. The Gilmore is former Virginia Governor James Gilmore, whom I think was in military intelligence at some stage in his career.

Expert testimony on the methods of drug dealers

Blog 702 has this post on the Fourth Circuit's ruling in the case of U.S. v. Gwynn, a per curiam decision for the panel of Judges Wilkinson, Traxler, and Gregory, in which the Court upheld the admissibility of "expert" testimony about the methods of drug dealers, noting that "[i]n the context of drug cases, this court repeatedly has upheld the admission of expert testimony of law enforcement officers, especially about the methods of drug dealers."

I'm wondering just what the expert says in those cases - "I know drug dealers, and the defendant acts just like one"?

Chief Judge Wilson rules no wrongful discharge claim for nurse who sought medicine change

According to this story ("Judge dismisses suit filed by nurse who was fired," 12/16/03) in the Roanoke Times, Chief Judge Sam Wilson of the W.D. Va. found no cause of action under the Bowman-through-Mitchem line of Virginia law cases within the allegations of a "nurse who claimed she was fired after she asked for a change in a patient's medication that saved her life."

Best law school in Michigan

Via Politics & Law, this story ("Hail Mary Passes - How to build a great law school," 12/2/03) from the National Review Online about the Ave Maria Law School in Michigan makes me think that this kind of success is what Dr. Pat Robertson had in mind for Regent and what the Rev. Jerry Falwell hopes to accomplish with the law school coming to Lynchburg, but neither of them ever owned Domino's Pizza (or the Detroit Red Wings).

Finding the governor's tax calculator

Here is the Governor Warner's online tax calculator.

You can count us in among the alleged 65%, our estimated tax savings worked out to be $32.28.

NAACP gets on Warner for race discrimination in state agencies

The Washington Times reports here ("NAACP rips Warner on hiring, diversity") that the NAACP in Virginia is criticizing Governor Warner for not doing more to resolve complaints of race discrimination in state agencies, particularly the Department of Social Services.

Boies possibly out as counsel for the Florida vote litigation in 2004?

This article says Al Gore's old attorney David Boies has some kind of bar discipline charge against him in Florida, which could affect his ability to appear pro hac vice in Florida cases. Florida's Abstract Appeal has this post on the case.

Boies along with Johnnie Cochran are the headliners at the VTLA convention coming up this April at the Greenbrier. I may have to re-mortgage the house and go out to the Greenbrier just to hear and see those two.

Natural Bridge Zoo bears with worse luck than Saddam

As the Roanoke Times reports here ("Hunter shoots 2nd bear from Natural Bridge Zoo, 12/16/03), the second of a pair of zoo bears on the loose because of the inadvertent failure to secure their pen has been killed. The second bear was shot by a hunter who didn't know there was a fugitive Asiatic black bear at large in the woods of Rockbridge County.

Unrelated to this, 10% of New Jersey's bears were killed and one governor is on the hotseat as the result of that state's recent bear season, as reported here.

State Senator Bolling launches campaign for lieutenant governor

The Roanoke paper has this report ("Bolling to run for lieutenant governor," 12/16/03) on the official start to the campaign of Bill Bolling, a Republican state senator from Hanover County, for election as Virginia's lieutenant governor in 2005.

Virginia law standards for the insanity defense

This Richmond Times-Dispatch article ("Defense hinges on illness definitions - What Malvo's attorneys call a disorder is seen as willful to the prosecution's expert," 12/15/03) discusses the law and the evidence on the insanity defense in the Malvo case, still ongoing in Chesapeake.

Monday, December 15, 2003

Virginia inmate faces Thursday execution date

In this article ("Man's execution set for Thursday -
Brain-damaged alcoholic faces death for murdering Christiansburg woman, 87," 12/15/03), the Richmond paper describes the issues being raised by lawyers for a Virginia inmate scheduled for execution this week for murdering an 87 year-old woman in Christiansburg.

The issues include the alleged incompetence of the defendant's lawyer:

"Reid's lead attorney at the time, Peter Augustus Theodore, said he had tried numerous capital-murder cases and other criminal jury trials. He said experienced lawyers he had consulted advised him to have Reid plead guilty. He said it was his experience that juries in Montgomery did not believe in the so-called voluntary-intoxication defense.

But Theodore was not being honest. In fact, last year the Virginia State Bar reprimanded him for making false and misleading statements in the case, and it took away his license to practice law until a physician and a psychiatrist say he is competent to continue.

Neither Theodore nor the lawyer who represented him before the state bar could be reached for comment. According to the bar order of Oct. 22, 2002, Theodore said he suffered from kidney stones "and takes a variety of prescription medications to address this and other health difficulties."

The bar order said there was evidence that three lawyers advised Theodore not to plead Reid guilty before Grubbs. The bar also found that Theodore apparently had never had a criminal jury trial in Montgomery, nor could he identify a case there in which voluntary intoxication was used as a defense in a capital-murder case.

Reid's petition argues that Theodore was unqualified to take a capital-murder case, and that he lied about his qualifications to get the case, for which he was paid $50,000. They also charge that he was not qualified to handle Reid's initial appeal to the Virginia Supreme Court."

The Institute was heard from in Iraq on Saturday night

The Richmond paper has this terrific article ("A VMI grad with eyes like 'two deep caves' directed the raid," 12/15) on Colonel James B. Hickey, a graduate of the VMI class of 1982, and commander of the 4th Army Division brigade that apprehended Saddam Hussein on Saturday.

It ends with this:

"For Richmonder Robert Louthan, another VMI classmate of Hickey's, words of Civil War general and one-time VMI professor Thomas J. 'Stonewall' Jackson came to mind. 'I sent out an e-mail recalling what Jackson said before Chancellorsville: "The Institute will be heard from today."'"

Sunday, December 14, 2003

Governor Warner's tax reforms don't help the poor and the elderly

This article ("Warner Tax-Cut Proposals Won't Benefit Va.'s Poor, Elderly," 12/14/03) in the Washington Post takes the position that Governor Warner's tax reform plan does not "help" the poor and the elderly. The article notes that there will be no income tax reduction for those who do not pay any income taxes, and suggests that poor people are affected more by an increase in the sales tax. There some mention that the removal of the sales tax on food would help the poor, but no attempt to quantify this effect.

More on the contenders in the Virginia presidential primary

Eight Democrats plus Lyndon Larouche filed to be on the ballot for Virginia's Democrat presidential primary next February 10, as reported here in the Richmond paper, which reports that Professor Larry Sabato believe Howard Dean is strong in Northern Virginia, while Wesley Clark and John Edwards have support in Southside and Southwest Virginia.

Spamming suspect turns himself in

The AP reports here that the second of the two North Carolina men charged under Virginia's anti-spamming law has turned himself into the authorities.

William & Mary president talks about the funding gap

Here is William & Mary President Tim Sullivan's "clear-eyed look at the higher-education funding gap."

Oral argument earlier this month at William & Mary

The Dog Street Journal had this report on oral arguments before a panel of the Fourth Circuit December 5 held at the McGlothlin courtroom ("the world's most technologically advanced trial and appellate courtroom") in the law school of the College of William & Mary.

"Dog Street" refers to Duke of Gloucester Street in the lingo of Williamsburg residents, the McGlothlins for whom the courtroom is named are the parents of the McGlothlins of the United Company based in Bristol, and the Fourth Circuit panel that day included Judges Widener, Michael, and Shedd.